Judicial activism without concern

By Prabhakar Timble
18 April 2017 09:49 IST

Whatever laudable the objectives may be in terms of minimizing the road accidents or deaths related to drunken driving including recognizing the fundamental right to life, the judgment of the Supreme Court imposing a blanket ban on the ‘existing’ liquor bars and vendors within 500 meters of National Highways does not stand the test of law, logic, fairness, justice and the nexus between the judgment and the mischief sought to be curbed.  It is a supreme example of judicial recklessness for populism and attempt to claim moral space sacrificing the tenets of law which is the primary duty of the Supreme Court to uphold.

 Needless to put on record that alcoholism and liquor addiction are social evils. Both these issues cannot be addressed by judicial prescriptions or surgery. Drunken driving is an offence under relevant laws and needs to be curbed through more stringent penalties and effective policing. At the same time, production, sale and consumption of liquor within the prescribed reasonable restrictions is not illegal. It is an undeniable fact that ban on liquor would be worse and a reasonable boundary is the intelligent solution.

 Judicial dictatorship

Though a votary of judicial activism, I hold the judgment on the liquor ban as insensitive and irresponsible judicial law-making. Any similar enactment by Parliament or any State legislature would have been declared as invalid and struck down by the Supreme Court invoking the virus of retrospective legislation. As per the established legal doctrine of retrospective legislation, any law which puts existing stakeholders or contracts to disadvantage or irreparable damage is legally and constitutionally unsustainable. What applies to the core legislative institution equally holds good to the judiciary when it oversteps into the shoes of legislature. First of all, such judicial law-making is an excess. This overindulgence by the Supreme Court is compounded as it is applied to existing establishments, many of which are standing for over a decade. In Goa, there are vendors operating from pre-liberation times and the National Highways erupted much later. The judgment would get the trappings of respectability if sought to be applied prospectively. It is well established principle that the trade licenses are issued for fixed durations to be renewed largely on considerations of public revenue and there is no instance of merciless termination of such business licenses.

Apart from the above, the Supreme Court has not stood up to its own principles of fairness and justice. There cannot be a uniform and standardized order when the ground situation is not equal in all the states. Goa is the tiniest state in terms of population and geographical area. A huge chunk of the already limited land area is covered under forests and environmentally sensitive zone. It is the most sought tourist destination nationally and internationally. Further, the market size also puts a limit on the economic opportunities for the people. The judiciary cannot overlook all these considerations and lay claims to be fair and just. The stakeholders should be heard before dispossessing them of their right to life, occupation, business and livelihood. There should be in-built safeguards in the judgment to deal with genuine demands and exceptions. It is the absence of the protective clauses in the judgment that makes it disastrous for the life and livelihood of those in trade. The castigation that state governments are proponents of social evil is preventing the offensive against the unjust and high handed order of the apex court.

The right nexus

It is beyond comprehension to understand how the Supreme Court drew a nexus between road accidents and liquor vendors on National Highways and more so within a 500 meters radius. One expects the judiciary to base its order on logic, intelligible and testable criteria.  At most, this could be described as a fragile order of the Supreme Court to give a semblance that the court is attempting to rescue the victims of road accidents without actually providing any rescue cover. If the Supreme Court has to be treated with prestige, it needs to give valid reasons for the choice of the 500 meters radius and the nexus with the mischief it is seeking to plug which is rash and negligent drunken driving.

Undoubtedly, road accidents and deaths is a burning issue to be dealt. Drunken driving is definitely one cause and should be attacked through stiff penalties and regulatory mechanism. Supreme Court had the opportunity to pin the judgment on the malaise directly rather than groping in areas which do not prove the nexus. As it is the order of the apex court, it has to be respected despite all its illegalities and inaccuracies.

It would be wise and appropriate if the Supreme Court corrects itself through prospective application of the judgment and saves existing establishments and vendors. This would stop attempts of the Executive to make cosmetic alterations to the National Highways for all genuine reasons to circumvent the order and making an ass of the apex court. The blame would be on the Supreme Court if such gates are opened to make a mockery of the order. It is also expected of the Executive to almost declare a moratorium on further expansion of liquor vendors with highly selective exceptions as Goa is as on date over-liquored state in context of its size.

 

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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